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While EU Copyright Protests Mount, the Proposals Get Even Worse

DEEPLINKS BLOG
June 1, 2017

This week, EFF joined Creative Commons, Wikimedia, Mozilla, EDRi, Open Rights Group, and sixty other organizations in signing an open letter [PDF] addressed to Members of the European Parliament expressing our concerns about two key proposals for a new European "Digital Single Market" Directive on copyright.

These are the "value gap" proposal to require Internet platforms to put in place automatic filters to prevent copyright-infringing content from being uploaded by users (Article 13) and the equally misguided "link tax" proposal that would give news publishers a right to compensation when snippets of the text of news articles are used to link to the original source (Article 11).

The joint letter addresses these two muddle-headed proposals by stating:

The provision on the so-called "value gap" is designed to provoke such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications if they want to have any chance of staying in business. ...

More and more voices have joined the protest by academics and a variety of stakeholders (including some news publishers) against this [link tax] provision. The Council cannot remain deaf to these voices and must remove any creation of additional rights such as the press publishers’ right.

IMCO Proposal Lowers the Bar for Awful Copyright Policy

Incredibly, since the letter was drafted, the proposals have gotten even worse. In our last post on this topic, we highlighted some of the atrocious amendments to the original text being pushed by the CULT (Committee on Culture and Education) of the European Parliament, notably to give producers and performers an unwaiveable copyright-like power to demand additional payments for the use of their work by online streaming services. But the CULT committee doesn't have a monopoly on bad ideas for European copyright. 

One of the other committees, the Internal Market and Consumer Protection Committee (IMCO), will be finalizing its own recommendations for the amendment of the Digital Single Market Directive in a vote on 8 June. On Wednesday Member of the European Parliament (MEP) Julia Reda sounded the alarm about a sly move by EPP Group Shadow Rapporteur to IMCO, MEP Pascal Arimont, to propose that the committee accept an alternative "compromise" text, that far from being a compromise, checks off every item on the copyright maximalist wish-list.

As regards the upload filtering mandate, the "compromise" would extend this mandate to cover not only content hosts, but also "any service facilitating the availability of such content," apparently including search engines and link directories. Only small startups would be exempt from this filtering requirement, and only for a maximum period of five years.

The safe harbor that protects Internet platforms from copyright liability for users' content would also be abolished for any Internet platform that uses an algorithm to improve the presentation of such content—and it's hard to imagine any platform that doesn't do that. As such, it is no exaggeration to say that if this became law, it would no longer be safe to operate a user-generated content website in Europe.

If this wasn't bad enough, the Shadow Rapporteur's proposal goes all out in favor of the Commission's unpopular link tax proposal, extending it even further so that it would cover all uses of news snippets both online and offline, and last for 50 rather than 20 years. The new monopoly right would also be extended to scientific and academic journals, allowing them to demand fees for the use of abstracts of articles. Only the use of single words and bare hyperlinks would be exempted from the link tax, meaning that as few as two words quoted from a news article would raise liability for copyright-like fees payable to publishing organizations.

A Ban on Image Search

Another of the senseless proposals that has been published this week, this time not by the Shadow Rapporteur of IMCO but by the CULT committee again, is a proposed amendment to extend the "value gap" proposal to include a new tax on search engines that index images, as for example Google and Bing do. This proposed amendment [PDF] provides:

Information society services that automatically reproduce or refer to significant amounts of visual works of art for the purpose of indexing and referencing shall conclude licensing agreements with right holders in order to ensure the fair remuneration of visual artists.

It's unclear how much support this particular proposed amendment may have, but should it find its way into the final CULT committee report, we can well imagine that just as Google News shut down in Spain following Spain's implementation of a link tax for news publishers, the closure of image search services won't be far behind. It's hard to see that outcome as being any less detrimental to artists as it would be for users.

European lawmakers need to draw a line in the sand, and stop giving oxygen to copyright holders' most fanciful demands. If you are European or have friends in Europe, you can help deliver this message by contacting members of the IMCO committee and of the CULT committee to urge them to oppose such extremist rent-seeking proposals.

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